Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

The unpredictable "at issue" waiver doctrine can strip away privilege protection without any disclosure of, or explicit reliance on, privileged communications. But state courts and even federal courts take widely varying approaches to this most dangerous type of implied waiver.

Privilege

Thomas E. Spahn | McGuireWoods LLP

One might think that any company reasonably anticipates litigation after suffering a data breach, so the work product doctrine would almost inevitably protect its data breach investigation. But only a handful of companies have succeeded in claiming such protection.

Privilege

Thomas E. Spahn | McGuireWoods LLP

The work product doctrine protects documents primarily motivated by litigation or anticipated litigation. It does not protect documents created in the ordinary course of a company’s business, or required by an external or internal mandate. If a company is already in litigation, failing to acknowledge that fact can weaken a work product claim.